Clear and present danger

No one could accuse Namibia’s leading human rights institution, the Legal Assistance Centre (LAC), of being sensationalist. So when it warns that the Namibian government is poised to implement a law that would not only seriously undermine academic freedom, but would also constitute a clear and present danger to Namibian democracy and open society in general – it is time for everyone to sit up and start worrying.

In a detailed legal analysis of TheResearch, Science and Technology Act 23 of 2004 (the Act), which could come into force at any time now that its regulations have finally been gazetted, the LAC concludes that the Act ‘appears to violate both the letter and spirit of the Constitution, and the very idea of democracy and the free marketplace of ideas, characterised by the freedom of speech, thought and debate which helps sustain any democracy’.

This is all a far cry from the stated aims of the Act, which are noble enough and include the intention to ‘promote and develop research, science and technology’; ‘encourage innovative and independent thinking’ and the ‘optimum development of intellectual capacity’ in the fields in question; promote linkages with relevant international institutions; and perhaps most importantly, ‘ensure dedicated, prioritised and systematic funding for research, science and technology application and development’.

However, the devil – as always – is in the detail. As the LAC points out, ‘whereas the objectives focus is on promoting research and independent thinking, much of the Act and the regulations actually seem to be aimed at controlling and limiting research and enquiry’.

One major area of concern relates to the administrative system for implementing the Act, which will involve the establishment of a neutral-sounding National Commission on Research, Science and Technology. Among other things, the Commission will ‘monitor and supervise the promotion, co-ordination, development and continuation of research, science and technology in all sectors in Namibia, and to minimise overlapping in the fields of research, science and technology’.

But the composition of the Commission is a cause for real concern. The problem is that the Commission, which has yet to be established but will consist of 12 members, will almost certainly not include a single person qualified in the engineering, natural, medical or social sciences. Instead, 8 of the 12 commissioners will be directly appointed by the government – with 6 nominated by the Minister of Education, one by the President and one by the Director of the National Planning Commission.

The other four commissioners will be nominated by the National Council for Higher Education, the Namibian Chamber of Commerce and Industry, the Law Society of Namibia and one by an ‘organisation which is, in the opinion of the Minister, representative of students in a scientific area'. Needless to say, independent civil society representatives will be conspicuous by their absence.

In addition, the President will have the discretion to issue ‘general policy directives’ to the Commission. This is a level of government control over a body which should be impartial and independent is almost unprecedented in any analogous liberal democracy anywhere in the world – and is more akin to the attempts by autocratic regimes in closed societies of the 20th century to impose political and ideological considerations on research and research bodies.

The Act also requires research institutions, either Namibian or foreign (the wording of the Act is clear as mud in this regard, as in much else), to be registered with the Commission – leaving it entirely to the discretion of the Commissioner to approve or deny a request for recognition. And the definition of a ‘research institution’ is so extraordinarily broad as to potentially encompass all manner of institutions which the Act, in all probability, never intended to cover.

For example, the LAC notes that ‘All tertiary institutions in Namibia would fall under this definition. Schools with learners who write research papers or conduct science fair projects would also seem to fall within this definition. Virtually any organisation which compiled statistics, even about its own activities, would fall under this definition – including most businesses and NGOs. A law firm which compiled heads of argument based on a study of case law sources would be a research institute. A medical practice where doctors conducted systematic batteries of tests to diagnose their patients would be a research institute. A media outlet which analysed its readership or broadcast audience would be a research institute. Most UN agencies operating in Namibia would be research institutes.”

Individual researchers, too, would have to register with the Commission, and foreign researchers or institutions would have to obtain written authority from the designated Minister. However, the Minister may set any conditions and prohibitions ‘which the Minister thinks is in the interest of Namibia’.

And in case any researchers out there are reading this and thinking to themselves that a polite request to the Minister should do the trick, think again. The application procedure consists of a detailed 16 page form requiring a level of information described by the LAC as ‘breathtaking’, ‘highly onerous’ and ‘intrusive’.

All of this is bound to have a chilling effect on research and innovation in the country and would ‘quite likely result in extreme international embarrassment for Namibia if implemented’.

However, far more serious than a few unspared blushes is the fact that the Act, taken as a whole, most likely violates violate the Constitutional guarantees of ‘freedom of speech and expression’ (Article 21 (1)(a)), ‘freedom of thought, conscience and belief, which shall include academic freedom in institutions of higher learning’ (Article 21(1)(b)), and the Constitutional right ‘to practise any profession, or carry on any occupation, trade or business’ (Article 21(1)(j)), amongst others.

Commenting on the Act, Deprose Muchena, the Acting-Director of the Open Society Initiative for Southern Africa (OSISA), placed this noxious legislation within the broader context of governance and economic development debates, saying:

“This Act will set Namibia on the path towards limiting the space and ability to participate in knowledge production – something that is absolutely vital to the development of knowledge-based economies, which are key to surviving the harsh realities of the new global economic order. A knowledge-based economy must permit a broader search for knowledge by all and must broaden the space for such knowledge inquiry, including by tapping into indigenous knowledge systems that exist outside what a government appointed commission likely considers to be useful knowledge.”

Namibians would do well to heed the words of a once obscure German patent clerk who went on to become perhaps the greatest theoretical physicist of all time and who, as a Jewish refugee from Nazi Germany, understood a thing or two about closed regimes.

“By academic freedom I understand the right to search for truth and to publish and teach what one holds to be true,” he said. “This right implies also a duty: one must not conceal any part of what one has recognised to be true. It is evident that any restriction on academic freedom acts in such a way as to hamper the dissemination of knowledge among the people and thereby impedes national judgment and action.”

That man was Albert Einstein. On the subject of the relationship between the unimpeded quest for truth and freedom, he also offered this imperishable observation: “Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.”

The gods may not yet be laughing, but one can almost hear them beginning to chuckle, as Namibia’s democratic ship begins to list.

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